Public Libraries

I am glad the column is helpful, but this issue really shows the limits of the law!

Before I say what I mean, I need to emphasize three things:

1. State and federal law often protects employees who complain about "working conditions."[1] Since an odor is a "working condition," no matter what position a library takes on "bad" smell (barring it as a disturbance, allowing it as a matter of mission, or a solution somewhere in between), leadership should carefully listen to employees' concerns.

2. While my November 17th answer mused there are several compelling reasons to opt for a more inclusive solution (like use of a "scent free" zone), I want to re-emphasize: that is not what the law requires.  Rather, the law requires that people not be barred from library access on the basis of disability or protected characteristics.  Since that is a slippery slope, not barring people on the basis of smell (or using a "scent free zone") is a good way to stay in a legally safe zone. 

But barring disturbing odors, if done carefully, is still allowed by law.

3.  Although I imagine that the member submitting the question didn't mean "taking sides" literally, because it is so critical, I have to say: library employees should never perceptibly "take sides" with one patron against another patron, even if they privately agree that a patron's odor is off-putting.[2]  This is because if access is going to be limited, the library must be able to show fair and equitable treatment.  An employee with a concern, of course, can take it directly (and discretely) to their supervisor.

 

So with all that said...

From the legal perspective, the key on the employee side of the "smell" issue is to listen to employees' bona fide concerns about their working conditions.  This is true whether your library decides to bar certain smells as "distractions," or to find creative ways that, ultimately, might expose an employee to an unwelcome smell.  Above all, whatever approach is taken, it should be clearly set out in a written policy, and decisions under that policy should be well-documented.  And to address concerns like the one raised by the member, to the greatest extent possible, the policy should be written with the input of employees, who should also be trained on how to work with it.

But that said...

Does this mean some employees, believing their library should have a more inclusive policy, might have to enforce a restrictive policy?  Yes.

Does this mean some employees, not liking their library's more inclusive policy, may have to work near a person whose smell they do not like?  Yes.

This is what I mean by "the limits of the law."  The law can help libraries foster positive working conditions and employee morale—to a point.  After that, it is down to leadership, well-developed polices, and good employee relations.

This is why people often like their HR director more than their lawyer!

 

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[1] I don't mean employees are entitled to complain all day every day; an employer can require complaints to be conveyed in a way that does not unduly burden productivity.  But if an employee is expressing a bona fide concern (it's too cold/it smells/these computers don't work) the National Labor Relations Board has found such expressions to be protected activity.

[2] This is a tough one.  It is not "taking sides" to contribute to a report or Code of Conduct enforcement; my concern is that at all times library employees have to model fairness, so when they take action under a policy, the process looks as fair as possible.

In law school, one of the first classes you take is "real property."
 

I remember thinking, back in that first semester before my brain got converted into that of a lawyer: "Real" property?  What...is there something called UNreal property?

Of course, nowadays when I see questions like this—about land, and land rights, and the laws impacting them—I think "Oooh...a question about real property!"

Warn your kids: this is what three years of law school will do to you.

I appreciate questions about real property, because I really enjoy working on issues involving land, and land rights, and the laws impacting them.  Whether it's roads, old buildings, or construction matters, some of my favorite work requires reviewing surveys, obsessing over title abstracts,[1] and poring over inspection reports.  And don't get me started about design-build contracts.

In this case, many of the fundamental considerations of this submission were addressed in a previous "Ask the Lawyer" from 12/13/2019.  So as a primer, readers may want to take a look at that previous answer, where we discuss some of the fundamental things a library has to consider when selling real property.

This background allows me to jump right into the specific concerns of the member's questions:

Question 1: "How much autonomy does the Library have in accepting and selling this property?"

Answer: unless there is a specific provision in the library's charter, bylaws, or contract with its sponsoring municipality that expressly creates some type of co-ownership, the library, as the sole owner, has ALL the autonomy.

Question 2: The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum.

Answer: unless there is a clear legal claim that puts title entirely or partly into the municipality, the various state laws governing sale of municipal property do not apply; rather, the sale is governed by Education Law Section 226.

Question 3: Finally, who controls the proceeds from the sale?

Answer: the board of the library, and no one else.

 

To the member's brief, pithy questions, I will add a question of my own:

Question 4: Why am I so confident about the answers to questions 1 through 3?

Answer: because I have researched the following:

• The relevant state laws and regulations of the State of New York
• Case law regarding cases involving public library sale of property
• Relevant guidance from the State Comptroller
• Relevant guidance from the NY Attorney General
• Relevant guidance from the State Education Department

These materials span over sixty years of library law-making, and I am not going to summarize them all here.  But for those who wish to dive a little deeper into this topic (buckle up, unless you, too, are interested in real property, I've been told this is pretty boring), here is a brief overview:

Education Laws 260 and 226, together, confirm that the trustees of every library chartered in New York,[2] may "[b]uy, sell, mortgage, let and otherwise use and dispose of its property as they shall deem for the best interests of the institution..."

Here are some examples showing how this legal structure has been applied:

In 1953, the NY State Comptroller opined that when a village and a library jointly acquired property, they were co-owners.[3]  This means a library can co-own a library building along with its sponsor (much as two individuals can co-own a parking lot).  If that is the case, the law and regulations applicable to both entities would govern a sale.  However, that same year, the Education Department confirmed that a chartered library is a separate entity from its municipal sponsor.[4]  

Flash forward to 1976, when the Comptroller stated that a school district library[5] could acquire a building on its own.[6]   Since that time, there hasn't been a lot of case law over who owns library buildings:[7] like any other stand-alone, not-for-profit education corporation, a library can own its own building.

That said, while the New York Education Law empowers public libraries to buy, sell, mortgage, and otherwise dispose of their real property, there are other laws and regulations controlling how the resulting assets can be used.[8]  This is why a public library (or any library) should not buy, sell, lease, or arrange for capital improvements without its lawyer involved (that goes double for accepting a bequest or a restricted donation of land or a building, which has not only legal/regulatory considerations, but could also be fraught with the drama that can accompany wills and transfers of land).

Now, in the midst of all this ownership/autonomy, it is good to remember: not all public libraries own their buildings.[9]  Some libraries are tenants of their sponsoring municipality (to check the ownership of the building, check the deed or the real property tax records for your county).  But even a library that is a tenant of their municipality buildings can own a separate building—if some nice person or entity decides to give them one.

So in a case like the one described by the member, the most useful thing would be to 1) check the library's charter; 2) check the documents giving title of the property to the library; and 3) make sure the lawyers for both the municipality and the library (and the buyer!) are on the same page about ownership and salability.  As the lawyers do their "real property" thing, so long as the title is "clear" and solely in the name of the library, it is the library who owns the property, and the board of the library who decides if/how to sell it (in a way consistent with its charter, bylaws, and charitable status....on that, see the "Ask the Lawyer" from 12/13/2019).

Thank you for a great question.

 

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[1] A "title abstract" is a summary of everyone who has owned a parcel of property since it was first regarded as something to be owned.  It can contain all sorts of historically salacious details, like when a house was foreclosed on, or what it sold for in 1935.

[2] Which all Regents-chartered "municipal" libraries are.

[3] Opinion of the State Comptroller #142 (1953).

[4] Opinion of Counsel for the NY Education Department No. 61 (also 1953).

[5] Another type of "public" library.

[6] Opinion of the State Comptroller #771 (1976).

[7] There is a lot of case law involving the planning and construction of library buildings, but no squabbles about who actually owns them.  For a good example of a case involving construction of a library, see Matter of Rimler v City of NY, 53 Misc 3d 1212[A], 2016 NY Slip Op 51627[U] [Sup Ct, Kings County 2016].

[8] Martin v Board of Education, 39 Misc. 2d 519, 241 N.Y.S.2d 396, 1963 N.Y. Misc. LEXIS 1971 (N.Y. Sup. Ct. 1963).

[9] It is important to know who owns the building!  If your library is a tenant rather than an owner, it impacts things like personal injury cases (an example of this is found in Deinzer v Middle Country Public Library, 2013 NY Slip Op 33823[U] [Sup Ct, Suffolk County 2013].

Non-governmental employers

Recent changes to the Labor Law make the "private" part of this question easy to answer: since all employers must now offer all employees sick leave (unpaid if the employer has under four employees, paid if five or more), an employee may use that sick leave for the purpose of obtaining medical care, including to get vaccinated.

If a non-government-agency employer would like to go one step further and not require an employee to use accrued sick leave, but instead, give them a day (or two half-days, for the vaccine that requires two shots) for the specific purpose of being vaccinated, that's fine, too, so long as the library considers vaccination of employees to be part of its Safety Plan (making the vaccination a work activity, and not a prohibited gratuity from a charitable entity to a private person).[1]  But there is no obligation to do so.

Small but critically important exception to this rule: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

 

Public libraries

Okay, this is where it gets tricky.  For public libraries that consider their employees to be employees of a "government agency," hang on one second, we'll address what you can do in the paragraph below.  For all other public libraries, who must follow the new sick leave law, the section above applies.

 

Public Libraries Who are "Government Agencies"

For public libraries whose employees are considered employees of their sponsoring municipalities,[2]  there is no obligation to "give" paid time out of the library to get vaccinated unless it is in a collective bargaining agreement or your government subdivision's response plan.  However, if your library is allotted vaccine as part of a rollout to public employers, and the entity you are getting it through (sponsoring municipality or school district) is encouraging vaccination by allowing it to be done on work time, that is an option to consider.  Further, if your library develops an employee vaccination rollout plan as an addendum to its Safety Plan[3] and would like to offer up to a certain number of hours of paid time out of the office to encourage vaccination, if part of a plan, that can be allowed (but is not required).[4]

Small but very important exception to this rule, just like with "private" libraries: if your library employees are in a union and their time off is subject to a collective bargaining agreement, you must check and abide by that agreement, or develop a special provision with the union.

 

For All

Issues like this a) affect mission and morale, b) relate deeply to employee and public safety, c) can impact a library's budget, and d) are fraught with compliance concerns, so any decision is best to tie to your library's Safety Plan,[5] and to have trustee approval (confirmed by a vote).

I continue to admire the care for others, tenacity, and attention to detail members of the library community bring to their questions as we get through this pandemic together.

 

 

 

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[1] Just to be clear: to avoid a forbidden benefit to an individual, NO charitable entity should "give" a paid day off for vaccination without linking the enhanced safety of workers to its charitable operations (i.e., making it a part of their Safety Plan).

[2] Note: even when this is the case, the library's board of trustees, and only the board of trustees, determines who is hired, how they are compensated, and any matters related to development, discipline, and termination.

[3] This "Ask the Lawyer" addresses how to prioritize vaccine allotments and roll them out through policy: RAQ #193.

[4] At least, it is not required as of 1/21/21.  As with all things COVID, check for updates on this.

[5] And be reviewed by a lawyer, whenever possible.

The member's caution shows how important it is to get this one right.

Before delving into it, I want to say: for public libraries with a union, this is one to confer with union leadership on. 

For public libraries without a union, it will be good to think about not only your internal prioritization, but the messaging around it. 

And for all libraries connecting their employees to vaccine, this is one to plan in careful coordination with a board committee, your lawyer, and your local health department.

With the right participants at the table[1] and careful consideration of ethics and privacy, finding the right plan for you won't be easy, but you will get it right.

This question is about the "ethics and privacy" part of the process. For a public institution that will be part of this rollout, the State of New York's own ethical statement and guidelines for prioritization are a good place to start.  Here they are:

New York State based its COVID-19 vaccine distribution and administration process on ten guiding principles.

1. Safety: New York State will only endorse and distribute a COVID-19 vaccine if it is determined to be safe and will only be used according to the indication under which it received its authorization or license. This includes continued monitoring and reporting of adverse events after the vaccine is licensed and administered.
2. Effectiveness: New York State will only endorse and distribute a COVID-19 vaccine if it is demonstrated to be appropriately effective in the populations intended for use.
3. Expert approved: New York State will rely on the advice and counsel of recognized clinical experts and scientists to review and approve the safety and effectiveness of every vaccine that is authorized by the federal government for distribution.
4. Equitable & clinically driven distribution: New York State’s COVID-19 vaccine distribution plan will be based on standards that prioritize people at higher risk of exposure, illness and/or poor outcome. Unrelated factors, such as wealth or status, will not influence distribution.
5. Transparency: Throughout the COVID-19 crisis, the state’s daily public presentation of facts and reliance on science and medical expertise helped build public trust and confidence in government action. New York State will continue to be transparent regarding all aspects of the COVID-19 vaccine distribution, administration, and monitoring process to ensure New Yorkers are fully informed.
6. Use of Data: Coordination of a successful vaccination program will require robust tracking, data and analytics capabilities. New York State will use powerful data and information technology platforms to guide all parts of the COVID-19 vaccine distribution and administration process to maximize safety, accuracy, and efficiency and meet all federal reporting requirements — all while maintaining patient privacy.
7. Privacy and Patient Safety: New York State will ensure all vaccination processes prioritize patient safety, and all information systems guarantee patient privacy. Vaccination does not take away the importance of other public health measures that have served us well in the fight against COVID-19. New Yorkers will be urged to continue to practice social distancing, mask wearing, hand washing, and other measures.
8. Partnership, Coordination & Public Outreach: New York State recognizes that coordination with local organizations and community providers is essential to the safe and successful distribution and administration of COVID-19 vaccines. The state’s outreach efforts will especially focus on reaching underserved, hard to reach, and vaccine-hesitant populations, as well as those at highest risk for COVID-19 infection and poor outcomes.
9. State Leadership: New York State expects federal engagement on vaccine vetting, distribution, administration, and funding. However, regardless of the level of federal engagement, New York State will take all necessary steps and require local coordination with the state’s centralized approach to ensure an efficient and organized vaccine distribution.
10. NEW YORK TOUGH: Throughout this COVID-19 crisis, New Yorkers have shown that there is nothing we cannot do if we work together as one community. Our approach to the COVID-19 vaccine will be tough, strong, united, disciplined, and loving.

 

Informed by these guiding principles, each library can consider its unique policies, Safety Plan, and if relevant, collective bargaining agreement (union contract), and confirm its own internal method of prioritizing.

While these variables will make each library's position unique, the best way to confirm and follow the method of prioritization they decide on is to:

            1) Adopt a written policy;

            2) Document that it is being followed consistently;

            3) Notify the employees and the public as to how the process will be implemented.

Here are an "example policy" and "example notice" drawn from the State's approach:

[**START EXAMPLE POLICY**]

[NAME] Library Vaccine Distribution Policy [Employees Only]

[**EXAMPLE ONLY**]

Policy

In step with the method of prioritization being applied by the State of New York, [NAME] Library's COVID-19 vaccine employee distribution plan will be based on "levels" that prioritize people at higher risk of exposure, illness and/or poor outcome.

Definitions and Levels

"Higher risk of illness and/or poor outcome" means that a medical condition makes it potentially more likely the employee could become ill, or, if they do become ill, are statistically more likely to experience a poor outcome; such need shall be considered "Level 1(d)." 

"Higher risk of exposure" means those who, working within the parameters of the Library's current safety plan, PPE requirements, and operations:

• Perform any function or share any criteria required for vaccination during the New York Department of Health's Vaccine Distribution Phases 1a and 1b (including those 65 and older), but did not obtain the vaccine; such need shall be considered "Level 1(a/b)".
• Must report to work on site and physically interact with the public as part of their routine job duties, and/or handle circulating materials; such need shall also be considered "Level 1".
• Must report to work on site as part of their job duties; such need shall be considered "Level 2".
• Performing all work duties 100% remotely; such need shall be considered "Level 3".

Procedure for 1(d) requests

Any Level 1(d) requests for vaccination shall be confidential.  When supplies are available to the Library, employees who self-identify as at "higher risk of illness and/or poor outcome" may request COVID vaccination through the same confidential process used to request and arrange disability accommodations, with the understanding that during this time of extra burden on medical providers, documentation of the condition creating the need may be supplied after vaccination (please supply a note from your physician when you are able).

A request for vaccination may be considered separately or together with accommodations based on disability.

Procedure

Any employee may request vaccination. 

When supply and demand require prioritization, the order of priority shall be:

          Levels 1 (any type): highest priority

          Level 2 and with a member of their immediate household with higher risk of illness and/or poor outcome: second highest priority

          Level 2: third highest priority

          Level 3 and with a member of their immediate household with higher risk of illness and/or poor outcome: fourth highest priority

          Level 3: fifth highest priority

          All others: lowest level of priority

 

If further prioritization is required to prioritize between Level 1 employees, the order of priority shall be:

          Level 1 (a/b)

          Level 1(d)

          Level 1 (any type) and with a member of their immediate household with higher risk of illness and/or poor outcome

          Level 1

 

If an employee is selected for vaccination through the library, the employee will be expected to follow all the rules and procedures for vaccination. 

Employees not selected will be placed on a wait list in order of priority.[2]

The Director, or their designee, shall be responsible for compliance with this policy.

         [**END EXAMPLE POLICY**]

 

[**START EXAMPLE NOTICE**]

[NAME] Library Vaccine Opportunity Notice

[**EXAMPLE ONLY**]

DATE: [INSERT]

The Library has been issued # doses of COVID-19 vaccine.  We expect to be able to initiate vaccinations on DATE.

As determined by the attached policy, the Library will be offering vaccination through our allotment to as many employees as possible. 

Vaccination is voluntary.

Please transmit your interest in being vaccinated and your assessment as to the level of priority you fall into (see the policy) to name@address by DATE.

For example: "I am voluntarily requesting vaccination through the library's allotted doses.  I believe my priority level is "1."

Requests that include medical disclosures will be treated confidentially.

If the library is able to grant your request, we will send you information regarding next steps, and you will be expected to follow all the rules and procedures for vaccination.  Employees not selected will be placed on a wait list in order of priority. 

Supplies are limited.  If you have the opportunity to be vaccinated through another supplier, we encourage you to do so.  Employees may use up to a day of sick leave for each vaccination session.[3]  The library places the highest priority on the health of our employees.

[**END EXAMPLE NOTICE**]

 

Final notes from the lawyer:

These are early days for the vaccine and vaccination rollout.  While being prepared with a policy is the right move, prior to announcing any prioritization, after adopting a policy, be ready to be flexible, since the situation is changing rapidly. 

As with all major policies, this is one that ideally will be adopted via a vote by your board.[4] Here is a sample resolution for you:

BE IT RESOLVED, that after due consideration of the "guiding principles" of the State of New York and the library's own code of ethics, that the Library adopt the attached "Library Vaccine Distribution Policy" and "Notice;" and

BE IT FURTHER RESOLVED, that the [insert] committee shall work with the Director to monitor the need to revise this policy, based on any new guidance, knowledge, or operational needs.

 

I wish you good health, strength, and fortitude as we move into this next phase of overcoming the pandemic.

 

 

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[1] This does not mean your library's (online) meetings about your rollout should have a cast of thousands—or even 5.  A good approach is like a series of waves: a small core group of policy makers (director and one or two board members) reach out to the identified parties to alert them and get initial input, set a time to check in on a final draft, set a tight deadline for final input and final approval by the board.  With the right planning, this can be done in 3-5 business days, and no one should be allowed to sandbag it.

[2] Care should be taken that any Level 1(d) designation is not set forth on a list that can be accessible per FOIL.  Once created, a wait list should simply set forth the names or employee ID numbers in order of priority.

[3] Drafting note: for libraries that must follow the new sick leave law (Labor Law Section 196-b, effective in September 2020), time off for vaccination does qualify as sick leave.  Libraries that regard themselves as being exempt government agencies, and thus not subject to 196-b, should check with their municipal attorney or HR professional to confirm if this meets the requirements for sick leave under municipal policies.

[4] While it is critical that a library board of trustees entrust the day-to-day management of the library to the director, policies are always ideally adopted at the level of highest accountability.  This will also position a board to have a director's back if there is a legal or operational challenge to the vaccine distribution policy.

This is an incredibly sensitive, important, and complex set of questions.  I know a lot of people out there in "library land" are waiting on the answer—from many different perspectives.

So we're going to take it slow, break it down, and unpack the components of the answers one step at a time.

Step 1: Considering requiring immunization to COVID-19 as part of a library's evolving Safety Plan

As I have emphasized in numerous pandemic-related answers, any library operating in any capacity right now should have a trustee-approved Safety Plan tailored to its unique operations.  The plan should evolve as new safety-related information emerges, and as library operations change.

As of this writing,[1] some libraries are open to visit.  Some are doing only curbside.  Some are offering more remote programming.  Some have used their information management and lending capacity to distribute PPE, food, and living supplies.  Because of this diversity of service, they all should have different Safety Plans.

The Safety Plan of a library closed to the public for everything but curbside will be different from the Safety Plan of a library open for socially distant use of computers and lending.  The Safety Plan of a library distributing fresh produce will be different from a library streaming programming from its community room to an audience within its area of service (and beyond).  The Safety Plan of a library operating with ten on-site staff in December should be different from the one they used when there was only one employee on-site in June.

Just like the decision to use a particular mode of sanitization, as a library undertakes and changes its unique services, the decision to require immunization of employees should start with vaccination's role not as a stand-alone solution, but as part of an overall approach to limiting the impact of the pandemic on your library, its employees, and your community.  Do the services your library needs to provide the community warrant immunization of employees?  If so, keep reading.

 

Step 2:  Wait, so does what you said in "Step 1" mean a public library can go ahead and require employees to be vaccinated?

Yes...and NO.

I say "yes," because under the right conditions, the law does allow employers to impose conditions for safety, and that can include mandatory vaccination.[2]  However, I also say "NO," because the phrase "the right conditions" carries a lot of complexity for three little words.  To be safe, the default assumption of a library[3] should always be that it can't require immunization of its employees...and then work to find the way, if well-informed risk management and an updated Safety Plan warrants it, it can require immunizations (and just as critically, if it should).

 

Step 3: Assessing if a library can require vaccination of employees

Before a library gets too far into an internal debate about if it should amend its Safety Plan to require vaccination of employees, it should assess if it is in a position to do so.  This means having an experienced HR administrator or attorney look at the organization's bylaws, policies, and employment relationships to see if there are any steps or bars to the requirement.

What could such a bar look like?  The most common impediment a library will run into on this is an employment contract—either for individual employees, or with an entire employee union (a "collective bargaining agreement").  The bottom line on this type of impediment: if there is a contract in play, a library must be very tactical, collaborative, and strategic prior to creating—or even considering—immunization as an employment condition.[4]

Another bar might be language in an employee handbook or a pre-pandemic policy.  Still another might be that "gray area" when library employees are considered employees of a school district, village, or town.

The best overall guidance I can offer on this Step is: assessing if your library is positioned to require immunization is a critical step to using vaccination as a tool in your Safety Plan.  Bring in a ringer to help your library assess the extent of what it can do.

 

Step 4:  Assessing if a library should require vaccination of employees

Okay, let's say you consulted with the best employment lawyer in your village/town/district, they took a close look at whatever relevant contracts and policies your library has, and they have said: "No problem, you can require this."[5]

The next important thing to consider is: should your library require this?

Compelled immunization[6] is an incredibly sensitive area of policy and law.  Since the time Ben Franklin started insisting on smallpox immunizations,[7] this public health issue has had passionate rhetoric on both sides of the debate. 

I have worked with families whose children have documented contraindications for certain vaccines, and it is not a simple issue.  And right now, a public discussion is happening about why people who are African-American might not trust being offered a first round of vaccination.[8]  These are life-and-death issues.

That said, those on the front lines of public service, during a time of pandemic, are at higher risk of both getting infected, and spreading disease.  Science shows vaccination will mitigate that risk.  Thus, under the right circumstances, encouraging such employees to be vaccinated is the right thing to do, and in some cases, employers have made the decision that requiring vaccination is the right thing to do.

The consideration of this question is classic risk management.  What critical services is your library providing to the community?  What exposure to possible infection do those services create?  Does social distancing, PPE, and sanitization mitigate those risks within acceptable tolerances, or would requiring vaccination of employees demonstrably make those employees and the community safer?  Are there certain duties that merit requiring immunization, and other duties (jobs performed 100% remotely, for instance) that do not?  And critical: is mass employee immunization in step with the approach of your local health department?[9]

There is no cookie-cutter answer to these questions, but a responsible decision to require immunization of employees as part of a well-developed and evolving Safety Plan should answer them all.

 

Step 5:  Developing a robust policy that includes consideration of civil rights, the ADA[10] and privacy

So, let's say your library has followed Steps "1" through "4" and has decided it can, and should, update its Safety Plan to encourage or require immunization of employees.

The next step is developing a policy that:

• Demonstrably does not discriminate or have an unintentional disparate impact on any protected class of people (race, religion, sex, etc.);
• Has appropriate measures for people to opt-out based on a disability accommodation under the ADA or the New York Human Rights Law;
• Protects the privacy of those who either meet the requirement, are granted an accommodation to not meet the requirement, or who must be terminated due to refusal to meet the requirement.[11]
• Manages liability through good planning and the transmission of accurate information, not (just) waivers of liability.[12]

I also suggest that the library strongly consider ensuring, well in advance, that: 1) the vaccine is available to employees, and 2) that employees don’t have to pay for it.  This is because 1) once the library has identified that there are risks in its operations that would be best mitigated through immunization, those activities should be limited until the mitigation is in place, and 2) there can be legal complications if the vaccination requires personal expense.  While this advance planning and cost containment is not precisely a legal compliance concern, they are close first cousins, and should be addressed as part of the Safety Plan. 

 

Step 6: If a library decides to require immunization, develop a PR Plan (optional, but a very good idea)

I don't need to tell a library audience that what a public library does on this topic will be scrutinized, criticized, and eventually, also a model for the rest of your community.[13]  Since any decision on this point will have its critics, and also (hopefully) its fans, be ready to let your public know, simply and straightforwardly, the basis for your library's decision.

I like the classic "FAQ" approach.  Here are two model FAQ's for two libraries that did the legal analysis and safety assessment, and come to the following decisions:

FAQ: I was told the library board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include supporting voluntary immunization of employees.

FAQ:  Voluntary?  So you are not requiring it?

FAQ ANSWER:  Our risk analysis and still-limited operations showed that we could meet the community's needs by requiring masks, social distancing, and routine sanitization.  We have now added supporting employees in getting vaccinated on a voluntary basis.

FAQ:  Will you ever require it?

FAQ ANSWER:  Only if our operations change and an updated risk analysis shows us that it is best for our employees and for the community.

Another "FAQ" example, for a library that came to a different conclusion, is:

FAQ: I was told the board is requiring all the employees to be vaccinated for COVID, is that true?

FAQ ANSWER: Since re-opening on DATE, the NAME Library has had a Safety Plan.  Now our Safety Plan does include mandatory immunization of employees who are able to be vaccinated.

FAQ:  Why is the library requiring employees to get vaccinated?

FAQ ANSWER:  Feedback shows that the community needs us providing critical services right now.  Our risk analysis showed that in addition to requiring masks, social distancing, and sanitizations, immunization by employees would protect their health, and the community's, while we provide those services.

FAQ:  The vaccine is not 100% available yet.  Did your employees have to do this on their own?

FAQ ANSWER:  Our library worked with [INSTITUTION] to make sure our employees had access to this safety measure, without cost to them.

And that's it.[14]

The important take-away I want to emphasize here is that for individual libraries, there are no quick answers to these questions.

Libraries of all types will be assessing their unique legal and risk positions, and will need to make carefully documented and executed decisions.  Libraries within larger institutions may need to fight for consideration separate from other operations.  Public libraries will need to consider the heightened transparency and public accountability they operate under.  Library systems will be thinking about how they can protect their employees while also supporting their members.  And for the employee on the ground, they'll be thinking about keeping themselves, their families, and their communities safe.

By taking careful, deliberate, and well-informed steps, the answers to the member's questions can be found.

Thank you for a vital question.

 

---

[1] December 18, 2020.   For many of you, that means you've been shoveling lots of snow (we're looking at you, Binghamton).

[2] See the case Norman v. NYU Health Systems (2020) (SDNY), 2020 U.S. Dist. LEXIS 180990 *; 19 Accom. Disabilities Dec. (CCH) P19-109

[3] And in this case, I use "library" in its broadest sense: public, association, and even libraries operating as part of a larger institution (such as a college, hospital, or museum).  School libraries, in particular, may both fall under the policies of the institution they are within, but might also have different operations, activities, and exposure that warrant independent risk analysis.

[4] I can't be more specific than that, since in some cases, there may be "emergency" management clauses that could easily allow the requirement of further safety measures, while in other cases, there could be language that makes it clear such a requirement will have to be a point of discussion.  The important take-away here is: if there is a contract in play, don't wing it.  Bring in your lawyer.

[5] The actual answer will of course be in writing and will likely be much more extensive than "No problem!"   It should also be included in the records of library leadership to document the appropriate level of risk analysis.

[6] When I say "controversial," I mean legally.  The science is solid: immunization saves lives.

[7] Ironically, Franklin's young son would die of smallpox before he could be immunized, in part because Franklin's wife Deborah was wary of the new treatment.  Franklin was devastated by the loss of his small, precocious son, and some scholars say it caused a rift in his marriage that was never healed.

[8] If you know your history, you know these fears are based in reality.  If you want to learn more, a good place to start is this New York Times article: https://www.nytimes.com/2020/12/06/opinion/blacks-vaccinations-health.html?searchResultPosition=4

[9] Whenever possible, confirming Safety Plans, and significant revisions of Safety Plans, with the local health department is a very good idea.

[10] The ADA is a critical consideration here.  A good place to start for further information on this is the EEOC, at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.  However, this is just a starting place; as you can see by the linked guidance, this part of your policy cannot be a simple cut-and-paste job.

[11] I know, this sounds cold; and it is.  Considering if a library is actually prepared to terminate employees for refusing to meet the requirements should be part of your library's analysis here, too...because once you develop the policy and start requiring it, granting exceptions without justification can create serious legal complications.

[12] The member asks about waivers for employees who decide not to be immunized.  A waiver of liability should only be used if it is part of a well-developed Safety Plan, and customized for the purpose by an attorney.

[13] Although I just did.  Ah, rhetoric.

[14] I could go on with a few more FAQ's to illustrate the diversity of approaches available (they are kind of fun to write), but I trust you get it.

There is a large array of case law,[1] academic articles, industry guidance, and news coverage on the subject of regulating smells in libraries (specifically, the smells of people and/or their belongings in libraries).[2]

Based on those materials—and in particular, the case law—my answer to the question "legally is this allowed?" has to be: YES.  With a carefully considered policy, carefully followed, barring library patrons based on their "disturbing" odor has been ruled to be legal, just like barring other factors that disturb the operations of the library (noise, eating, running) can be.

But just because a library can bar "disturbing odor" doesn't mean I always advise my clients to do it.

Why?  Because this is 2020.

In 2020, we know that the impact of barring people based solely on them being "disturbing" is fraught with risk,[3] both for legal reasons (claims based on the First Amendment, equal protection, due process, disability, etc.) and for reasons related to a library's mission (concerns related to the type of existential considerations raised by the member). [4]

Of course, in 2020, we also know that regardless of where you land on the question of "disturbing odor," this issue poses concerns from the other side, as well; a patron or employee trying to access or work in a library may find a smell (whether caused by another person, or by a condition of the building) to present an actual risk to their health (allergies, chemical sensitivities).  So one person's access to the library may pose a risk to the access of another.

Finally, in 2020, while nothing is a sure bet, it is reasonable to expect that one of these days, one of the legal cases challenging a library's bar to access based on a "disturbing odor" is going to result in a policy or ejection being overturned.  And while that currently-hypothetical case may turn on circumstances unique enough[5] to not bar all such policies, such a ruling could throw the current legal footing into question.

Which is why I offer this: rather than barring people due to "disturbing odor"[6] (which as the member points out, is a conclusion rooted in subjectivity) a library might be wise to consider planning, policies and action to:

• Create "Scent-free zones" in your library where any perceptible odors, mold, dust, and use of substances associated with chemical sensitivities, are as minimized as possible.  This can address the needs of people who are more sensitive to perfumes, chemical cleaners, and air fresheners...reducing the likelihood of complaints and concerns under the ADA.
• When planning capital improvements, invest in an HVAC system that circulates fresh air into library spaces (with all due consideration to humidity control for your collection), reducing the accumulation/proliferation of all odors, and in general creating a healthier breathing environment.
• Place seating near areas with more effective ventilation, and configure spaces to deter concentrations of patrons in less ventilated zones.
• And most critically: Develop policies to address objective, quantifiable health hazards that might be signaled by smell, rather than barring subjective and hard-to-measure "disturbing odors."

It is this last bullet—related to safety—that I would like to dwell on.

Some smells are just that—smells.  They may be perceived negatively, and perhaps even as a disruption, but to most people, they pose no risk. 

Some smells are not just smells, but "tells"—byproducts indicative of conditions that are experienced by the individual carrying them (like it or not, we all have these).  Some may be linked to a medical condition or disability, but in no way do they pose a safety threat to others.    Many people who are perceived as "smelly" have "tells".

And finally, some smells are indicative of a potential health hazard to those in their proximity; for example: sulfur added to otherwise odorless natural gas, the odor of certain paints as they dry...or the smell of a staph infection in an open wound.  These "evidence of danger" smells are the ones that libraries, who are legally obligated[7] to provide their patrons and employees with a safe environment, need to be concerned about, and should develop policies to address.

Need an anecdote to distinguish the smells from the tells from the hazards?  Here's a scenario:

A man walks to the library.  While walking, he treads in dog poop.

Because decades of smoking cigarettes have dulled the man's sense of smell, he does not notice that his shoe is coated in poop.  However, as soon as he enters the library, a page smells the poop, and points out to the patron that not only is his shoe smelly, but it is leaving fecal residue on the floor.[8]

Because there are many health-related reasons why the library doesn't want dog poop on its floor, the man is asked to leave until his shoe is poop-free.  The man leaves the library and visits his buddy across the street,[9] who lets him hose off his shoe in the back yard.

When the man returns to the library, he shows the page the clean shoe, and it is clear that the dog poop has been eliminated.  However, dog poop being what it is, the smell lingers on the shoe.  But insofar as the library is concerned, it no longer poses an active hazard to toddlers crawling on the Children's Room floor.  The man is allowed to walk into the library, selects the latest John Grisham novel, and leaves, the odor of dog poop lingering in the Circulation Desk breeze.

And that is the difference between using a smell to mitigate a health hazard, and tolerating a potentially disturbing odor in a library.  It is also how a library focuses on providing access and a safe environment for patrons and employees—while avoiding judgments rooted in subjectivity.

In posing this question, it is clear that the instructor is thinking about mission, about a library's role in its community, and about optimizing access to resources for all.  But the instructor has also honed in on this "subjectivity" concern, by asking: "Who is to decide what an acceptable/unacceptable level of smell"?

It is that very subjectivity that brings legal peril to the current scheme of things.  Sooner or later, the right combination of circumstances will arise, and a judge will rule that simply barring someone from a library based on nothing more than a bad stink is a legal violation.

Therefore, as we move past 2020, and into an era that will, all signs show, be more in need of information access and authentication than any era previously, I offer this template policy to "flip the script" on how libraries address the issue of odor. 

The ABC library is committed to access for all.  With regard to odors in the library, this means:

• We provide a designated scent-free area for patrons with chemical or scent sensitivities;
• We require any odor that is a sign of a possible health risk (hazardous chemical, fecal matter, rotting food, smoke, communicable infection or any substance that can damage the library or pose a risk to those in it) be addressed, and if a risk is likely to be present, mitigated immediately;
• We work to find people who may be bothered by certain non-harmful odors, such as perfume, cologne, or "body odor" of other patrons, space in our scent-free area, or near windows or well-ventilated areas.

We appreciate that as humans, our patrons bring a wide array of odors into our space, and not everyone appreciates that smell of others. If you need a scent-free area or well-ventilated area, please let us know.  If you notice any odor or other factor that could be indicative of a health hazard, please immediately alert staff so it can be addressed per our policies.

Meanwhile, the library's Code of Conduct should state some version of: Any activity or substance posing a health hazard to patrons and employees is prohibited.

And finally, internally, I suggest this protocol[10] for addressing reports of smells indicative of potential hazards:

Receive the report.  Note the date, time, person reporting it, and what is reported.  Ensure a qualified person immediately assesses the report.  If there is a possible health hazard, involve the appropriate personnel or outside resources to develop an immediate response/mitigation plan, with all due respect for safety, privacy, access, and due process.

And that's it.  From where I see it, while the status quo is legal, the future of "The Great Library Smell Debate" can shift to focus on two things: access, and safety.[11]  Factors that are subjective or based on personal preference ("bad smells" causing "disruption") are currently legally valid, but there is the possibility of a successful legal challenge.  If a library is concerned about the impact of such policies on mission, and wants to avoid subjective value judgments about smell, developing policies that focus on access and safety might be a more appropriate approach.

That said, to reiterate my honest answer to the question: right now, based on case law, "subjective" policies about "disturbing" odor, if narrowly tailored to serve a valid purpose[12], and executed properly, remain enforceable.  But as I have outlined, they can pose a risk. 

Make no mistake—sometimes odor needs to be addressed, and from many perspectives.  But the law provides many options, and using a focus on access and safety is one of them.

Thank you for a thoughtful question.

 

 

---

[1] The most authoritative and influential are: Lu v. Hulme (2015), Kreimer v. Bureau of Police for the Town of Morristown (1992).

[2] Trusting that an audience of libraries knows how to find research material, I'll simply say that the materials cited in the guide posted here (http://www.homelesslibrary.com/uploads/1/3/0/1/13014906/body_odor_handout.pdf) show the range of coverage and thought on this topic (at "Ask the Lawyer," we don't reinvent the wheel).

[3] This risk springs from the fact that, objectively speaking, every human being "stinks." Of course, for a variety of reasons, sometimes our personal odor is more overtly and broadly perceptible than at other times, and depending on an array of cultural or physiological factors, may or may not be welcome by them.  

[4] For a thorough discussion of the mission-related considerations of imposing odor bans, I recommend the article "It is a Non-Negotiable Order": Public Libraries' Body Odor Bans and the Ableist Politics of Purity."  By no means an unbiased academic exercise, you can easily tell where this author is coming from (they find odor bans antithetical to the purpose of libraries).

[5] These cases turn not only on precise wording, but on how the policy was applied, and the law in that precise locality.

[6] "Disruptive smell" while real, is, of course, subjective, since as I mentioned in footnote 3, all humans, to some degree, "stink," but "stink" is a relative term.  In that regard, I am reminded of the classic scene in Frank Herbert's "Dune," when young Paul Atreides first arrives at the home of his future allies, the Fremen.  Paul perceives their cavernous home, called a "seitch" as having a wretched stink, but just as he is about to show his disgust, his mother says "How rich the odors of your seitch..." saving her son from a fatal social blunder.  Of course, they go on to not only get used to the smell, but to conquer the planet.

[7] By a variety of laws, which can include local health codes, OSHA regulations, labor law, union contracts, local law.

[8] What he actually says is "Um...sir?  Hi, good to see you again. Hey, it looks like maybe you stepped in some dog poop?"  Thank goodness, not all people talk like lawyers.

[9] I bet people who live near libraries collect stories like this.

[10] Some larger libraries, or libraries that operate in close relationship with municipalities, will have well-developed hazard response plans, which this protocol should fit right into.  Others will not have that level of planning, or the resources to involve "qualified" internal personnel in assessing a reported hazard.  For that, it is good to have a relationship with the local county health department.

[11] Can a person bring in a smell so foul and pervasive that, even if it doesn't cause permanent injury, can be considered a "hazard"?  Anything that causes eyes to tear up/swell, retching, headaches, or violent coughing/sneezing in the general population can be considered a "hazard" (which is a term whose definition changes from law to law, but is used in its more generic sense here).  But getting some back-up from the health department is a good way to ensure that you get solid confirmation of this.

[12] Have your lawyer review this policy no less than annually!

When I started writing “Ask the Lawyer” in 2016, my daughter was two years old.

I would like to be able to answer this question like a two-year-old Molly and say simply (and loudly): “NO!” (you don't need a petition).

But time grinds on, so sadly, I have to answer this question like 9-year-old Molly, saying instead with an eye roll:  “You shouldn't have to do that.  It's not specifically required, and no one has had to do that for ages. But I guess there is some sort of precedent, so maybe do it so you don't get trolled?”[1]

The reasons for this convoluted stance is as complex as the reason why my daughter's “craft corner” is still a mess.[2]

Here they are:

As many of you know, the board of a public library (of any kind) can require a school board to put a vote to “establish or increase” a levy in support of that library per Education Law Section 259(1)(a).

In 2007, the NY Legislature amended [3] 259(1)(a) to specify that such a levy: “shall be submitted to the voters of the district as proposed by the library board of trustees...”

Lest anyone get confused as to why the Legislature would make such a change, the memo in support of the bill explained:

This legislation would amend Section 259 of the education law to clarify the ability of a library board of trustees to place budget proposals before voters for approval. Paragraph a of Subdivision 1 of Section 259 is amended to authorize only budget proposals approved by the library board of trustees to be placed on a ballot. [emphasis added]

This purpose of the amendment is explained in the section of the legislative memo ‘justifying’ the amendment:

JUSTIFICATION:

This bill clarifies and conforms provisions relating to library budget votes. The amendment to paragraph a (budget votes in school district public library) conforms the mechanism for placing a vote on the ballot to that already in Paragraph b (budget votes on municipal funding of other types of libraries). Ensuring endorsement of the proposition by the library board of trustees will eliminate the potential for multiple and conflicting library budget proposals on the same ballot. School budget propositions are currently subject to approval of the school board.

...

 While interpreting statutes is a complex exercise, ‘plain language’ is an important factor.  In this case, the plain language of both the 2007 amendment and its supporting memo indicate that to avoid “multiple and conflicting library budget proposals,” the path to a school district ballot is via the library board, for terms “as proposed by the library board of trustees.” And since this is per Education law 259(1)(a), which clearly states the resolution is “as proposed by the board” no petition is required.

Okay, great.  So the library board can adopt a resolution to propose to the voters of the district, and the voters of the district have the power to say ‘yes’ or ‘no.’

I would love to stop this RAQ there, but there is another wrinkle to consider here: is there a way for the voters to put such a resolution on the school district ballot?

This question is raised by two sections of the Education Law.

First: Section 259(1)(b), pertaining to most[4] municipal ballots, which provides:

1. Except as provided in subparagraph two of this paragraph, whenever qualified voters of a municipality, in a number equal to at least ten per centum of the total number of votes cast in such municipality for governor at the last gubernatorial election, shall so petition and the library board of trustees shall endorse, the question of establishing or increasing the amount of funding of the annual contribution for the operating budget of a registered public or free association library by such municipality to a sum specified in said petition, shall be voted on at the next general election of such municipality, provided that due public notice of the proposed action shall have been given.

Second: Education Law Section 2008, which empowers school district voters to initiate a vote on taxes.

This combo is nicely summarized in an opinion from the New York State Comptroller in 1981, when the authority of a library board to put the appropriation on the ballot was still a bit shaky[5]:

Therefore, it is the opinion of this Department that where a library board requests an appropriation proposition to be placed on the ballot at the annual meeting of a central school district, the board of education must comply. Such a proposition may also be submitted to the voters by petition under section 2008(2) of the Education Law or the board could include such a proposition with a revote called under section 2007.  The notice of any meeting where such a proposition will be voted on should so state. [emphasis added]

But that was back in 1981.  Since the 2007 amendment to Education Law 259 made it very clear that only a budget “endorsed by the library board” can be put to a school district vote, it would follow that the voters no longer have the power to submit a petition under Education 2008 (without the endorsement of the board).

So: is a petition signed by a certain number of voters required to put a budget before the voters of a school district?  No.  Just like a school board, the library board doesn't have to obtain a petition to exercise its authority under 259 and submit a budget for a vote.  And can a group of voters use their powers under Education Law 2008 to force a vote?  Again, the language and history of the law suggests the answer is ‘no.’

The tricky thing with all of this is that while the language is clear, the changes to Education Law 259(1)(a) have not been put to a legal test, and there is enough ambiguity for a school district to want to stick with a tried-and-true (pre-2007) practice and insist that a school district ballot 1) must be initiated by a petition signed by the right number of voters; OR 2) can be initiated by district voters per 2008 without the need for board approval.  What can I say?  Lawyers love precedent.[6]

And now, of course, I have to give a disclaimer.

Sitting here in my lawyer cave, I can argue what the language of the law ‘suggests.’  BUT until we get a test case to settle the issue—like how the 2022 Eisenhauer v. Watertown[7] case settled whether school district taxes can support a municipal library without violating the NY Constitution[8]—we won't have absolute certainty.  So, libraries should work carefully with their counsel, who should work carefully with the counsel for the school district, to confirm the process and language of school district ballots. Clear, open channels of communication between the library, the district, and the town can avoid problems down the road—and of course, libraries should always get a written opinion when budgets and funding are on the line.

Thank you for an important question!

[1] Yes, my daughter talks like both a lawyer and a Youtuber.  Since most people reading this are librarians, there's a strong chance the children in your life talk this way, too.  Yay, reading and multi-media literacy!

[2] “I was going to clean up but I couldn't find anywhere to put the dried mint and the glue gun, so I stuffed all the pipe cleaners in an old shoe box and called it a day.”—Not an exact quote, but a good paraphrase.

[3] Bill #A5107, sponsored by Assemblymember Eddington, and likely worked on by many people you know in “LibraryWorld” (at the time, I was in HigherEdWorld).

[4] The law makes excludes from the term “municipality” a city with a population of one million or more, and includes a county when the public libraries located in such county are members of a federated public library system whose central library is located in a city of more than three hundred thousand inhabitants.

[5] Reporter 1981 N.Y. Comp. LEXIS 726 * | 1981 N.Y. St. Comp. 176 ** Opinion No. 81-167

[6] It's a lawyer's security blanket.

[7] (Matter of Eisenhauer v Watertown City Sch. Dist., 208 AD3d 952 [4th Dept 2022]), appeal dismissed by (Eisenhauer v Watertown City Sch. Dist., 39 NY3d 944 [2022]).  By the way, the case has more going on than just constitutional issues, so give it a read.  It has nice language on the autonomy and independence of municipal libraries.

[8] Personally, I didn't think that question was up for debate, but the decision at all three levels of review (Supreme Court, Appellate Division, and Court of Appeals) now leaves no room for doubt.

Libraries likely do not have any statute of limitations for collecting overdue or replacement fines because the law does not consider library fines as “debts.” As such, any change to how long a “debt” may be collected does not matter for libraries. This privilege extends to third parties who collect fines on behalf of libraries. Let’s dive in deeper to help understand why.

            In February of 2019, a different WNYLRC member had a question regarding libraries and patron bankruptcy. Part of that answer addressed whether bankruptcy discharged replacement and overdue fines due to the library. We advised the member that it was likely that overdue and replacement fines would not be discharged in bankruptcy because libraries do not engage in the types of “business dealings” that can create a “debt” in the first place. That answer was taking case law on debt collection and applying it to the bankruptcy context. Here, the same case law is much more directly applicable. Understanding the full picture, however, requires a step back to examine why these Federal cases are relevant to interpreting a recent New York State law.

            In 2022, New York’s Consumer Credit Fairness Act (“CCFA”) went into effect. One of the provisions of the CCFA was reduction in the statute of limitations, from six to three years, for most types of consumer debt. The types of transactions the CCFA applies to are “consumer credit transactions.” That term is defined as “a transaction wherein credit is extended to an individual and the money, property, or service which is the subject of the transaction is primarily for personal, family or household purposes.”

 

            There is no case law or official guidance in New York that directly addresses libraries. There are, however, interpretations of federal statutes, such as the Fair Debt Collection Practices Act (“FDCPA”), which use nearly identical terms to the New York statute. Under the FDCPA, a “debt” is defined as “[a]ny obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” Almost identical to New York’s definition under the CCFA. Given these similarities, and that most state debt-collection statutes are modeled on the analogous federal statutes, looking at federal interpretations is persuasive.

            Tierney v. Unique is a 2018 federal case originating in South Carolina. There, a collection agency attempting to collect library fines on behalf of a library in Charleston was sued under the FDCPA. The court ruled in favor of the collection agency, holding that

“Plaintiff has failed to allege a proper claim, as he has not sufficiently pled that he has been the object of collection activity arising from ‘consumer debt.’ The borrowing of library materials, and the failure to return or timely return them which results in library fines, does not constitute such a ‘consumer debt.’”

            Notably, in Tierney, the library had added an administrative cost to the fines to offset the expense and having to offload the collection’s effort to a third party. This did not seem to affect the judge’s decision. Tierney also cited a 1997 case from the Northern District of Illinois which provided a full explanation of why library fines are different from consumer debt and credit transactions. This is the case we previously explored in the bankruptcy context. In Riebe v. Juergensmeyer, the Court wrote that 

“we agree with Defendants’ assertion that “public libraries do not engage in business transactions with patrons -- they lend public property to patrons, free of charge.” . . . A library is not a center of commerce but rather a “place dedicated to quiet, to knowledge, and to beauty,” and “a place to test or expand ideas . . . .” . . . Moreover, “an adequate library is essential for the dissemination of knowledge.” . . . “Its very purpose is to aid in the acquisition of knowledge through reading, writing and quiet contemplation.” . . . Unfortunately, when one fails to return library materials, he frustrates this purpose by depriving the public the full-use of the tremendous resources that a library has to offer. . . Consequently, the court finds that the borrowing of a library book is not the type of conduct that the FDCPA considers a transaction. As such, the ensuing obligation to pay for failure to return the book did not create a “debt” under the FDCPA.”

            The takeaway is this: Libraries probably do not have any statute of limitations whatsoever for overdue and replacement fines—whether collected on their own behalf or sold to collection agencies. There are some limitations. For instance, if the library charges an upfront fee for a DVD—that could be outside the scope. For run-of-the-mill overdue and replacement fines, however, courts seem to say that libraries are free to collect such fines by whatever means and by whatever timeline they see fit. Since most library fines are not “debt,” the statutes of limitations that apply to “debt” are simply inapplicable.

            There are two caveats to this answer. First, this reasoning likely applies to commonplace overdue and replacement fines, but not necessarily to every conceivable fine that may be imposed. As such, your library may wish to check its fine/fee/replacement policies and its collection contracts with collectors, to ensure they do not unknowingly create an enforcement limit where it would otherwise not apply. Members who want to ensure their specific policies and contracts do not create limits should confer with their attorneys for a written opinion.

            Second, the fact that a certain action is legal does not mean that it is the right course of action for a particular library. Having libraries as a “free” resource has always been a goal in New York – and the Education Law which establishes the legal footing for libraries expressly states as such. In order to further this goal, some libraries have chosen to move towards a “fine-free” model. A recent article in the American Library Association delves into why this model may be becoming more common. That being said, every library is different, and fines may play a bigger or smaller role in maintaining core services. Any decision about fines and how aggressively to pursue them is ultimately a balancing act that each library must decide for themselves.

This question is being answered by guest writer and LOSA[1] associate attorney Ben Sachs. 

Thanks Ben!

Many not-for-profit boards impose term limits on trustees. According to a leading source of information on not-for-profit boards,[2] 87.5% of boards have terms, and 54% of those with terms have term limits. Some advantages of term limits include ensuring a source of new ideas and perspectives, avoiding fatigue, breaking up entrenched interests, granting an opportunity for larger community engagement, and more flexibility to adjust to changing needs.

With respect to trustees of public libraries, some aspects are controlled be New York State law. For instance, Education Law § 260 provides that public libraries must have between five and fifteen trustees,[3] the terms of office must be either three or five years, and the terms must be arranged “as nearly as possible” to have “one-third or one-fifth of the members [] expire annually.”[4]

In addition, certain kinds of libraries have restrictions on the terms of trustees. Specifically, cooperative library systems prohibit five-year trustees from serving more than two consecutive terms, and three-year trustees from serving more than three consecutive terms.[5] Reference and research library system trustees only are permitted five-year trustees, and as such they are only allowed to have two consecutive terms.[6]

Outside of the above-mentioned provisions, New York law is open-ended with respect to trustees. Not-For-Profit Corporation Law § 703 permits entities to specify terms of trustees in any manner established in the bylaws or articles of corporation. Thus, it is perfectly acceptable to impose mandatory breaks after a certain number of terms.

If you would like advice about what structure may be the best for your library, or if you have specific questions about trustee appointment, election, terms, or other issues that pertain to your exact type of library, be sure to reach out to an attorney who may offer more directed counsel.

Thank you for the opportunity to answer your question!

---

[1]The Law Office of Stephanie Adams, PLLC

[2] https://boardsource.org/resources/term-limits/

[3] Or five to twenty-five trustees for joint public libraries.

[4] This only applies to libraries established after April 30, 1921.

[5] New York Education Law § 255.

[6] Id.

 

I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.

Why not?  Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid.  So answering this question requires a two-factor analysis:

Factor 1: Is the library in question considered a "type" of "governmental agency[1]?"

AND/OR

Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?

If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply.  If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.

 

Now let's talk about the factors in this "two-factor test."

Factor 1: Is the library in question considered a "type" of "governmental agency?

Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 [2].

Sure, the library has to account for taxpayer money as required by the "General Municipal Law."  And yes, it is subject to parts of the "Public Officers Law."  And yep—it may even have to disclose certain records under the Freedom of Information Law. 

But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from.  Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.

Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....

 

Factor 2: "Compensated as if they were employees of a governmental agency"

How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"

In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees. 

In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5],  c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"[6] otherwise barred by rules requiring mandatory overtime.  In short, under much of the Labor Law,[7] they are treated as municipal/district employees.[8]

 

So does my public library have to give employees sick leave under the new law, or what?

Sadly, there is no "bright-line" rule.  But!  I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:

Library-municipality Relationship Type	Hallmarks	Legal impact with regard to employees and labor law	What this means with regard to the new "Sick Leave" law ("196-b").
1. "Total Coupling" Type	The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.   Ideally, the relationship is confirmed in writing.	In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.	Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply.
2. "Select support: determinative" Type	The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.   Ideally, the relationship is confirmed in writing.	In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library  are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.	IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply.  Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.
3. "Select support: non-determinative" Type	The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status.  For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.   Ideally, the relationship is confirmed in writing.	In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance.  For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.	Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).
4. "Totally De-coupled" Type	The library has completely separated functions from any sponsoring entity.  The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.   No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.	In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.	Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

 

And there you have it.  From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way.  Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law.  If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.[10]

The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is.  This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11]  Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.

As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.

I want to say a big "THANK YOU" to  Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question.  He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law.  Thanks again, Ben!

I hope this approach and chart come in handy for public libraries out there struggling with this question. 

 

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[1] I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of. 

[2] Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."

[3] How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee.  If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.

[4] Or school district.

[5] Worker's compensation, unemployment, paid family leave, etc.

[6] "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime.  Only municipalities who are exempt from the Fair Labor Standards Act can do that.  For more on that, see "Ask the Lawyer" RAQ #59.

[7] Except the Taylor Law.

[8] I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.

[9] Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave. 

[10] That said, this chart only considers the application of Labor Law 196-b.  If it tackled everything, it would be...very, very long.  For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.

[11] It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.

^[12] And another big thank-you for agreeing to be publicly thanked.